Excerpt:.....inferred that they had participated in the crime or abetted it in any manner.;the impugned order passed by the learned magistrate is clearly improper and illegal and is liable to be quashed, as it is not based on any material or evidence.;(b) criminal procedure code (new) - sections 210 & 482--case registered on a private complaint and on police challan in report of same offence--held, both cases be inquired into together as if both are registered on police report.;in view of the clear provisions contained in sub-section (2) of section 210, cr.p.c. for procedure to be followed when there is a complaint case and police investigation in respect of the same offence. i think it proper to pass an order that the judicial magistrate, nimbahera, shall inquire into together the..........under section 173, crpc against the accused other than the petitioner and hira lal and such report cognizance of the offence might be taken and so complaint filed by uda ram would remain tagged with the police report. after the aforesaid order was passed one mangi lal brother of hira lal deceased filed an application before the magistrate that cognizance of the offence of murder may be taken against the two petitioners and one hira lal son of lakhichand also as there is prima facie evidence on the record relating to their participation in the commission of the crime. in support of his above application, mangi lal put in his won affidavit and the affidavits of uda, kani ram, shankar, magani ram and chhagan lal, who claimed to have seen the two petitioners and hira lal also taking.....

Judgment:

K.D. Sharma, J.

1. Mohan Lal and Ratanlal have invoked inherent jurisdiction of this Court by wav of an application under Section 482 CrPC for quashing an order of the Munsiff cum Judicial Magistrate, Nimbahera, District Chittorgah, dated 7th November, 1977, where by he took cognizance of an offence under Section 302 read with Section 149, IPC against the petitioner and issued non-bailable warrant for enforcing their attendance in the court.

2. The relevant facts giving rise to this petition may be briefly stated as follows : On 5th July, 1977, at about 5 PM Udairam son of Kaluji Chamar resident of village Intadia lodged a verbal report of murder at the police station, Kanera. It was alleged in the report that in the morning of July 5, 1977, the two petitioners along with their companions seven in number went to field of Hira Lal and picked-up a quarrel with the latter over the possession of the field. The petitioner and their associates were armed with weapons known as 'Paraniyas' in verracular. In the course of the quarrel they began to beat Hira Lal with stonesard 'Paraniyas'. As a result of the beating, Hira Lal and his wife Gita Bai fell down. Hira Lal became unconscious and latter on breathed his last on account of injuries sustained by him On the basis of the report, the police registered a criminal case under Sections 307 and 302, IPC and made the usual investigation into the matter. After collecting necessary evidence in the case, the police filed a charge-sheet against Parbhu Lal, Daya Ram, Ratan Lal, Ram Lal, Gori Lal, Bhanwar Lal, Mathura Lal, Shive Lal and Sohan Lal for the offence under Sections 302 and 307 read with Section 149 IPC. The police, however, did not put not up any challan against the two petitioners and one Hira Lal son of Lakhmi Chand as it was found that they were not involved in the commission of the crime. Uda complainant, felt aggrieved by the omission of the police to file a challan against the petitioners and Hira Lal. So he field a complaint against all the accused persons including the two petitioners and Hira Lal in the court of the Judicial Magistrate, Nimbahera, under Section 307, 302 read with Section 149 or 34, IPC. The learned Magistrate passed an order on the complaint on 25th September, 1977, that a report was made by the investigating police officer under Section 173, CrPC against the accused other than the petitioner and Hira Lal and such report cognizance of the offence might be taken and so complaint filed by Uda Ram would remain tagged with the police report. After the aforesaid order was passed one Mangi Lal brother of Hira Lal deceased filed an application before the Magistrate that cognizance of the offence of murder may be taken against the two petitioners and one Hira Lal son of Lakhichand also as there is prima facie evidence on the record relating to their participation in the commission of the crime. In support of his above application, Mangi Lal put in his won affidavit and the affidavits of Uda, Kani Ram, Shankar, Magani Ram and Chhagan Lal, who claimed to have seen the two petitioners and Hira Lal also taking part in the assault on the deceased. The learned Magistrate partly accepted the two applications and took cognizance against the two petitioners as stated above. However, he did not find any sufficient ground for proceeding against Hira Lal son of Lakhmi Chand. Aggrieved by the order of the learned Magistrate taking cognizance, the two petitioners have come-up to this Court.

3. I have carefully gone through the record and heard Mr. Bhausali assisted by Mr. K.C. Bhadari, Public Prosecutor, for the State Upon perusal of the statements of the witness recorded by the police during the course of investigation of this case, I am of the view that there were no sufficient grounds for proceedings against the two petitioners. It is undoubtedly true that the learned Magistrate had jurisdiction to proceed against any person under Section 319, CrPC if it appeared from the evidence that such person, not being the accused, had committed any offence for which he could be tried together with the other accused in the case, but there must be sufficient grounds or material on the record from which it could be reasonably inferred that the person proceeded against appeared to have committed the offence. In the instant case, the witnesses whose statements were recorded by the police during the course of investigation did not prima-facie ascribe any role to the two petitioners in the commission of the crime. Some of them merely stated that the two petitioners also were present there but from their mere presence it could not be legitimately inferred that they had participated in the crime or abatted it in any manner. It appears that the affidavits put in by Mangi Lal and other persons along with the application for taking cognizance weighed with the learned Magistrate in passing the impugned order but I may make it clear that such affidavits are not evidence at all on the basis of which cognizance of an offence may be taken against any party. Hence, the impugned order passed by the learned Magistrate is clearly improper and illegal and is liable to be quashed, as it is not passed on any material or evidence. It will not' however, be out of place to mention that in view of the clear provisions contained in Sub-section (2) of Section 210, CrPC for procedure to be followed when there is complaint case and police investigation in respect of the same offence. I think it proper to pass an order that the Judicial Magistrate, Nimbahera, shall inquire into together the complaint case and the case arising out of the police challan as if both the cases were instituted on a police report.

4. The application under Section 482, Cr.P.C. is, therefore, accepted & the impugned order passed by the Judicial Magistrate, Nimbahera, on 7th November, 1977, taking cognizance & issuing warrants against the petitioners is set aside & case is sent back to him for inquiry into the matter according to law and in the light of the observations made above.